HOW DID CITY LOSE ON BALBOA PARK?
JACOBS SAYS BALBOA PARK RULING TOOK HIM BY SURPRISE

That’s the question that Qualcomm co-founder Irwin Jacobs and other supporters of a proposed $45 million makeover of Balboa Park have been asking themselves since a judge praised the project but followed the letter of the law in rejecting it Monday.

Jacobs spent more than two years shepherding the proposal — which would create a bypass bridge to remove cars from Plaza de Panama and make it more pedestrian-friendly — through a lengthy environmental review and lively City Council hearing in July only to see it fall flat in court.

Superior Court Judge Timothy Taylor didn’t block the project on environmental grounds but rather because he said it violated the city’s municipal code, one of several arguments made by Save Our Heritage Organisation, which sued to stop the proposal.

Here’s why: In order to award a development permit for a substantial alteration to a historic resource, city leaders have to make a finding that denial of the project would result in an economic hardship to the owner (in this case, the city itself). Under city law, economic hardship means “there is no reasonable beneficial use of a property” absent the project under consideration.

The city made several arguments to persuade the judge that its finding of economic hardship was correct. The city said a “flexible” approach should be used to interpret the law, that failure to remove vehicles from the park would someday affect the regional economy and that it would lose the $30 million Jacobs had pledged for the project.

Taylor dismissed those arguments by saying the city can’t pick and choose when it enforces its own laws and that the future increase in traffic or loss of funding had no bearing on whether there was currently an economic hardship.

“The fact that the Plaza de Panama is now used … as a parking lot perforce establishes that it has a reasonable beneficial use,” Taylor wrote. “… Parking lots are a lawful and reasonably beneficial use, even if an undesirable one. … The critical finding by the City Council is so lacking in evidentiary support as to render it unreasonable.”

Jacobs, who said he’s giving up on the project, told KPBS that the ruling took him by surprise.

“Calling a parking lot a reasonable beneficial use for the core of the park was not something that I suspect any of us suspected,” he said. “There was examination of the ordinance, but the feeling was that it would not be a problem. It did turn into … a major problem.”

Since the ruling, City Attorney Jan Goldsmith’s office has said the City Council could adopt a project-specific exemption by ordinance.

“This is similar to what the state Legislature did with regard to CEQA (California Environmental Quality Act) exemptions for the L.A. stadium and other projects,” said Gina Coburn, Goldsmith’s spokeswoman. “If adopted, the ordinance would actually be amended thereby avoiding the need for findings. We are not suggesting a CEQA exemption, but only an exemption to the local ordinance. We understand a project-specific ordinance was considered by the proponents at one point but was rejected.”

The question of why that step wasn’t taken before the City Council approved the project on a 6-1 vote in July remains open.

During that hearing, Councilman Todd Gloria asked about the economic hardship finding after several project opponents raised the issue in public testimony. City staff and Scott Williams, attorney for Jacobs’ Plaza de Panama committee, gave the same reasons that were argued later in court, and Williams said there was “ample evidence” that an economic hardship would exist if the project was denied.

There was no discussion of the council making a specific exemption for the project at the hearing.

Williams did not return a call for comment.

At this point, it’s unclear if Mayor Bob Filner, who opposed the project, or the City Council will move to revive it with an exemption — and whether Jacobs would join such an effort.